Since 1977, Jon Michael Probstein has assisted people and businesses in all matters, is currently special counsel to firms in LA and NYC, and operates his own office in Nassau County. In accordance with the Rules of Professional Conduct, this may be deemed "Attorney Advertising". Nothing contained herein should be construed as legal advice. Always consult a lawyer regarding any matter. Call 888 795-4555 or 212 972-3250 or 516 690-9780. Fax 212 202-6495. Email jmp@jmpattorney.com

Friday, January 29, 2016

Friday, January 29

12:15 pm - 1:45 pm

“A Guide to Small Claims Court.” Attorney Jon M. Probstein
will explain small court procedure and discuss how to start your case,
file a claim and collect a judgment. Sponsored by the Nassau County Bar
Association.

Wednesday, January 27, 2016

"In June 2013, two days after the birth of respondent's child, petitioner and respondent executed an acknowledgment of paternity naming petitioner as the child's father. In January 2014, both parties filed separate petitions requesting custody of the child. However, in March 2014, petitioner commenced the instant proceeding to vacate the acknowledgment of paternity. After the issue of equitable estoppel was raised in a hearing before a Support Magistrate, the matter was referred to Family Court (see Family Ct Act § 439 [b]). Without holding a hearing, Family Court sua sponte dismissed the petition on the basis that the pleadings alone demonstrated that petitioner was equitably estopped from denying paternity. Petitioner now appeals.

"Once 60 days have elapsed following the execution of an acknowledgment of paternity, the mother or acknowledged father may challenge that document in court only on the basis of fraud, duress, or material mistake of fact, with the burden of proof on the party challenging the voluntary acknowledgment" (Matter of Wimberly v Diabo,42 A.D.3d 599, 599 [2007] [internal quotation marks omitted]; see Family Ct Act § 516-a [b] [iv]; Matter of Jeannette GG. v Lamont HH.,77 A.D.3d 1076, 1077 [2010]). To establish material mistake of fact, a party must demonstrate that such mistake "was truly material — i.e., substantial and fundamental to the nature of the [acknowledgment] — so as to entitle a party to void that document" (Matter ofWimberly v Diabo, 42 AD3d at 600). To establish fraud, a petitioner must show that he or she justifiably relied on the respondent's fraudulent statements or representations at the time the acknowledgment of paternity was signed (see Matter of Demetrius H. v Mikhaila C.M.,35 A.D.3d 1215, 1216 [2006]).

Here, in his petition to vacate the acknowledgment of paternity, petitioner alleged that his signature was procured either by material mistake of fact or fraud based upon respondent's history of infidelity. However, the petition also explained that petitioner put his name on the birth certificate of the child "despite all parties acknowledging that it was [another man's] child." Because petitioner's claim that he knew that he was not the father of the child negates a finding of fraud or material mistake of fact, as such findings are necessarily predicated on a lack of knowledge (see Matter of Felton R. v Gloria P.,63 A.D.3d 515, 515 [2009]), petitioner failed to plead sufficient facts constituting fraud or material mistake of fact (see Matter of Wimberly v Diabo, 42 AD3d at 601). Therefore, Family Court properly sua sponte dismissed petitioner's petition because, even "[a]ssuming the truth of the allegations in the petition, and according the petitioner the benefit of every favorable inference, the facts alleged do not fit into any of the grounds for vacatur of an acknowledgment of paternity" (Matter of Ronnyeh R. v Gwendolyn M.,99 A.D.3d 717, 717 [2012] [internal citation omitted]; see Matter of Panzer v Wood,100 A.D.3d 1119, 1119-1120 [2012], lv dismissed20 N.Y.3d 1001 [2013]; compare Matter of Siearra L. [Deborah L.], 130 A.D.3d 1184, 1186 [2015])."

NOTE: Even if a party meets his burden of establishing fraud, duress, or
material mistake of fact, the Family Court is then required to
conduct a hearing regarding the best interests of the child before
ordering a GMT - a genetic marker test. See WESTCHESTER DSS v. ROBERT WR, 25 AD 3d 62 - NY: Appellate Div., 2nd Dept. 2005:

"The doctrine of equitable estoppel may be invoked to preclude a father,
such as the respondent herein, from denying paternity to avoid support
obligations where the invocation of the doctrine is in the best
interests of the child (see Matter of Charles v Charles, 296 AD2d 547, 549 [2002]; Ocasio v Ocasio, 276 AD2d 680 [2000]; Brian B. v Dionne B., 267 AD2d 188 [1999]).
Here, there was evidence before the Family Court that the child, nearly
five years of age at the time of the subject challenge, recognized the
respondent as her father and that the child enjoyed a relationship with
him and members of his family."

Friday, January 22, 2016

"Respondent father appeals from an order modifying the existing custody and visitation order by, inter alia, directing that he have supervised visitation with the parties' child. Based on the record before us, we conclude that the Referee properly determined that petitioner mother established a sufficient change in circumstances that reflects a genuine need for the modification so as to ensure the best interests of the child (Matter of Rice v. Cole, 125 A.D.3d 1466, 1467 [internal quotation marks omitted]; see Matter of Vieira v. Huff, 83 A.D.3d 1520, 1521, 922 N.Y.S.2d 684). The mother established that the father, who had a long history of substance abuse problems, was again using various illegal drugs, including cocaine, heroin and marihuana (see Matter of Laware v. Baldwin, 42 A.D.3d 696, 696, 839 N.Y.S.2d 618; Matter of Brady v. Schermerhorn, 25 A.D.3d 1037, 1038, 810 N.Y.S.2d 230). Indeed, the father admitted that he had used illegal drugs only a few weeks before the hearing on the mother's petition (see Matter of LaFountain v. Gabay, 69 A.D.3d 994, 995, 891 N.Y.S.2d 728). The mother also established that the father had demonstrated behavioral changes consistent with his behavior during prior periods of time in which he had been using illegal substances, such as missing visitation with the child for extended periods of time.

It is well settled that a determination regarding custody and visitation issues, based upon a first-hand assessment of the credibility of the witnesses after an evidentiary hearing, is entitled to great weight and will not be set aside unless it lacks an evidentiary basis in the record, i.e., is not supported by a sound and substantial basis in the record (Matter of Rulinsky v. West, 107 A.D.3d 1507, 1509, 969 N.Y.S.2d 268 [internal quotation marks omitted]; see Matter of Van Court v. Wadsworth, 122 A.D.3d 1339, 1340, 996 N.Y.S.2d 448, lv denied 24 N.Y.3d 916). Here, the Referee made specific findings concerning the potential harm the child faced if the father were to have unsupervised visitation (cf. Laware, 42 AD3d at 697), and we conclude that the Referee's determination to impose supervised visitation is supported by the requisite sound and substantial basis in the record (Rice, 125 A.D.3d at 1467 [internal quotation marks omitted])."

Thursday, January 21, 2016

"“A Guide to Small Claims Court.” Attorney Jon M. Probstein will explain small court procedure and discuss how to start your case, file a claim and collect a judgment. Sponsored by the Nassau County Bar Association."

Wednesday, January 20, 2016

Here, the mother appealed from an order which modified the custody/parenting provisions by directing that her visitation be supervised. The appeal was denied.

The mother was found to be struggling "with substance abuse and various mental health issues,
including bipolar disorder, had difficulty controlling her reactive
behavior, which largely consisted of verbal abuse and inappropriate text
messages and included some physical abuse."

The court noted:

"Finally, we reject the mother's contention that the court erred in
ordering her to refrain from sending text messages to the children.
"[T]he evidence in the record supports a determination that . . .
[prohibiting text messaging] contact with the [mother] would be in the
children's best interests" (Matter of Fletcher v Fletcher, 29 AD3d 908, 909; see Matter of Shockome v Shockome, 53 AD3d 618, 619,lv denied11 NY3d 712), and she was not precluded from communicating with the children in any other manner (cf. Posporelis v Posporelis, 41 AD3d 986, 991)."

Friday, January 15, 2016

"We agree that respondent's removal and replacement of the cabinets and refrigerator without petitioner's permission when neither was so defective as to warrant such unilateral action was a substantial violation of the "no alteration" clause of the petitioner's lease (Freehold Invs. v Richstone, 72 Misc 2d 624, revg 69 Misc 2d 1010, revd 42 AD2d 696, revd 34 N.Y.2d 612). Nevertheless, issuance of the warrant of eviction should again be stayed on condition that respondent reinstall the original cabinets within 10 days after they are made available to him by petitioner. Should petitioner fail to make the cabinets available to respondent within 20 days after service of a copy of this order with notice of entry, the judgment is vacated.

Kupferman, J., dissents in a memorandum as follows:

To replace an old refrigerator with a new one and to substitute wooden kitchen cabinets for metal ones for aesthetic reasons is an unsubstantial deviation from the obligations of tenancy (see, Rumiche Corp. v Eisenreich, 40 N.Y.2d 174).

To bottom a warrant of eviction on such flimsy grounds is to denigrate landlord and tenant law."

"Respondents argue in the alternative that if the court finds that they installed their kitchen cabinets recently, they should not have to effect a cure by taking them down and replacing them with the original or similar cabinets. Respondents contend under Rumiche Corp. v. Eisenreich (40 NY2d 174 [1976]) that installing new kitchen cabinets does not constitute waste or show that they "inflict[ed] serious and substantial injury upon the landlord." But Rumiche did not involve kitchen cabinets. And this court noted just the other week, albeit in a lease-violation proceeding unlike this one and albeit in dictum, that installing new kitchen cabinets is a substantial alteration, not a cosmetic change. (See 259 W. 12th, LLC v. Grossberg, 2007 WL 586598, at *3, 2007 NY Slip Op 50304[U], at *4 (Hous Part, Civ Ct, NY County, Feb 20, 2007] [citing Freehold Investments v. Richstone, 34 NY2d 612 [1974, mem], revg 42 AD2d 696 [1st Dept 1973, mem], revg 72 Misc 2d 624, 626 [App Term, 1st Dept 1973, per curiam] [finding, although under lease clause that does not exist in this case, that tenant made substantial alterations by, among other things, installing new kitchen cabinets]; accord Britton v. Yazicioglu, 189 AD2d 734, 735 [1st Dept 1993, mem] [citing Freehold Investments].)"

"In this perspective, it becomes apparent that in the case before us there was insufficient proof of any repair or alteration which could be characterized as one causing permanent or lasting injury to the premises. The apartment in issue remains a one-room studio. Its four walls are intact and remain in place. The closet and windowframe built by the tenant are merely nailed to and not built into the walls; there was no showing that either cannot be taken down and removed at minimal, if any, expense or damage. They are clearly consistent with the tenant's use of the apartment as a residence. The ceiling light fixture is a straight replacement of the old and unworkable one by a new and functioning equivalent; the addition of a modern wall switch could hardly have been more de minimis. The replacement for the defective ceiling itself, though, according to the parties' stipulation, not as thick as that required by the fire code, was of the required composition and, interestingly, no violation because of it had ever been issued by the city. More pointedly, the landlord made no showing whatsoever, whether by stipulation or otherwise, that the thickness of the falling ceiling which it replaced was any greater than the one of which it complained in this proceeding."

But the dissent stated:

"Applying these rules, in the absence of an agreement to the contrary, it is obvious that the removal of the ceiling and its reconstruction with sheetrock of insufficient thickness to satisfy the fire code constituted waste and, therefore, that the tenant breached an obligation of the tenancy. Equally clear is the fact that the actions of the tenant in making the alterations were the result of willful conduct, that is "intentional and deliberate" (Matter of Old Republic Life Ins. Co. v Thacher, 12 N.Y.2d 48, 56). The only question remaining is whether the waste inflicted "substantial injury" upon the landlord. Alterations of a ceiling that leave the apartment in violation of the fire code could prohibit the landlord from leasing the apartment unless he bears the expense of installing an entirely new one. Resolution of whether this amounted to substantial injury raised a question of fact within the province of the trial court. The finding in favor of the landlord, having been affirmed on appeal, is beyond our power to review in the absence of legal error (Plaza Hotel Assoc. v Wellington Assoc., 37 N.Y.2d 273; Ginsberg v Yeshiva of Far Rockaway, 36 N.Y.2d 706). We observe no error of such gravity and, consequently, the order of the Appellate Division must, of necessity, be affirmed."

NOTE:

Often cited in these cases is Freehold Invs. v Richstone, 72 Misc 2d 624, revg 69 Misc 2d 1010, revd 42 AD2d 696, revd 34 N.Y.2d 612 in which the Appellate Term decision, which also had a dissent, was upheld in which the "tenant removed, and replaced with substitutes, a series of wall cabinets in the kitchen which were so physically annexed and affixed as to have long been accessory to and part and parcel of the realty. Besides installing metallic wall-covering material in the living room and bedroom, the tenant annexed to the freehold for use in connection with it, so that they cannot be removed without injury to the freehold, extensive and substantially imbedded ceiling and wall reconstructions and lighting arrangements."

Tuesday, January 12, 2016

The case in the news: appellate court rules that an Upper West Side
man has been illegally overcharged by his landlord for the last 16
year and has been rewarded $900K in restitution and had his rent stabilized at his $2.5 million apartment for under $800/month.

Friday, January 8, 2016

"...The parties' Separation and Property Settlement Agreement, which was incorporated in the judgment of divorce, provided that child support would terminate if the child was financially independent and economically self-sufficient, but not if the child was a full-time college student. At the time of defendant's motion, however, the child was not a full-time college student, and it was therefore proper for the court to consider whether the child was emancipated.

"It is fundamental public policy in New York that parents are responsible for their children's support until age 21" (Matter of Burr v Fellner, 73 AD3d 1041, 1041; see Family Ct Act § 413 [1] [a]). A child may become emancipated before that age where "the child becomes economically independent through employment and is self-supporting'" (Matter of Cedeno v Knowlton, 98 AD3d 1257, 1257; see Matter of Smith v Smith, 85 AD3d 1188, 1188). "The fact that a child may work full time is not determinative, as a child cannot be deemed economically independent if he or she still relies upon a parent for significant economic support" (Matter of Drumm v Drumm, 88 AD3d 1110, 1113; see Matter of Thomas B. v Lydia D., 69 AD3d 24, 29-30). The burden of proof as to emancipation is on the party asserting it (see Matter of Barlow v Barlow, 112 AD3d 817, 818).

Although defendant submitted evidence in support of his motion that the child was working full time, he did not submit proof that the child was economically independent. There was no proof regarding where she lived or who paid her bills (cf. Cedeno, 98 AD3d at 1257; Smith, 85 AD3d at 1188), and it was therefore error for the court to grant that part of the motion without a hearing. Indeed, "[t]he determination of economic independence necessarily involves a fact-specific inquiry" (Thomas B., 69 AD3d at 29).

Defendant's allegations in support of his motion also raise an issue of fact concerning constructive emancipation. Although the court did not address that issue in its decision, defendant properly raises it on appeal as an alternative ground for affirmance (see Parochial Bus. Sys. v Board of Educ. of City of N.Y., 60 NY2d 539, 545-546). "[U]nder the doctrine of constructive emancipation, a child of employable age who actively abandons the noncustodial parent by refusing all contact and visitation may forfeit any entitlement to support" (Barlow, 112 AD3d at 818; see Burr, 73 AD3d at 1041). However, "where it is the parent who causes a breakdown in communication with the child, or has made no serious effort to contact the child and exercise his or her visitation rights, the child will not be deemed to have abandoned the parent" (Barlow, 112 AD3d at 818; see Matter of Gansky v Gansky, 103 AD3d 894, 895; Thomas B., 69 AD3d at 28). Here, defendant asserted in support of his motion, and plaintiff did not dispute, that there is no relationship between defendant and the child, but the cause of the breakdown in communication has not been established. We therefore conclude that a hearing should be held on that issue as well."

Thursday, January 7, 2016

Today I will be a volunteer lawyer with Nassau Suffolk Law Services at Landlord/Tenant court in Hempstead:

"Volunteer Lawyers Project

What is the Volunteer Lawyers

Project?

Attorneys
are encouraged to volunteer to provide free legal assistance to the
poor in Nassau County through the Volunteer Lawyers Project. NCBA
partners with the Nassau/Suffolk Law Services Committee to support VLP,
which helps maximize the quantity and quality of pro bono assistance
provided for the county's low-income community.

What programs are part of the VLP?Volunteer
attorneys handle a wide array of cases including matrimonial
matters, individual bankruptcy, personal injury and negligence defense,
estate matters, release of accounts blocked by judgment creditors, and
various other civil matters.

• The Landlord/Tenant Project's Attorney of the Day Program assists thousands of men, women and children in court to prevent homelessness.

• The Bankruptcy Clinics assist families either with advice or the filing for a Chapter 7 bankruptcy, when appropriate.

• The Matrimonial Project assists hundreds of individuals in obtaining divorces, child support and custody.

How does it work?

An
attorney based at VLP’s offices in Hempstead conducts client intake
interviews and refers clients to appropriate volunteer attorneys. The
VLP attorney also recruits and trains volunteer attorneys to handle
cases."

Wednesday, January 6, 2016

Several years a go, a teacher in NYC discovered her internet account had been hacked. Soon, emails that contained stories about her sex life were sent out from from her email address and about a half year later, the same thing happened with her Facebook account. This past August, the Second Circuit addressed statue of limitation issues when bringing an action for violations of the federal Computer Fraud and Abuse Act and the Stored Communications Act.

Tuesday, January 5, 2016

In New York County, confession of judgments are subject to mandatory e-filing. However, once you e file, an index number will not be assigned until your papers are reviewed by a clerk. But the backlog is several months.

The clerks will allow you to expedite the filing by coming in person with your e filed payment notice and confirmation notice together with original papers. However, there is a six week waiting period - you can come down in person six weeks after the date you e filed to attempt to expedite.

Monday, January 4, 2016

Generally, the tax law treats the forgiveness of debt as
taxable income to the debtor. But as a wave of foreclosures
followed the housing bust that began in 2006, Congress decided to
cut some slack for homeowners who lost their homes. A new rule
allowed up to $2 million of debt discharged by lenders in
foreclosures or short sales, for example, to be excluded from
income. That provision expired at the end of 2014, but it has now
been revived retroactively to cover 2015 and extended for 2016,
too. This break does not apply to the discharge of debt on second
homes or rental property.

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Jon Michael Probstein, Esq.

About Me

Since 1977, my practice consisted of representing and assisting people and businesses in all matters, including public and private corporations, on both a civil and criminal level. My services have included public offerings, proxy fights, securities regulation, all phases of civil and criminal litigation, family law, estate law, guardianships, negotiation and drafting of a wide variety of agreements and transactions, in addition to general advice with regard to the customs and practices within various industries. I was also a Guest Commentator on COURT TV and an arbitrator. I am admitted to practice in New York and the federal courts, Southern and Eastern District, as well as the Second Circuit Court of Appeals. Currently, I am special counsel to law firms in Los Angeles and New York, as well as operating my own office in Nassau County. I regularly perform pro bono work for the Volunteer Lawyers Project, Nassau/Suffolk Law Services, Inc. and the NYS Unemployment Insurance Appeals Board and I am a member of the LAP Committee of the Nassau County Bar Association. I also have a blog that discusses common legal problems which you can visit at http://jmpattorney.blogspot.com/